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tv   [untitled]    February 4, 2013 5:30pm-6:00pm PST

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meeting. and then mr. hur commented to deputy executive director of ethics, who reports to the ethics director, that the respondent in the two cases, is there any reason why we can't just release the san jose's analysis about why the complaint fails? no problem, next issue. you just charged right through that october 22nd hearing with all sorts of irregularities of how you conducted that hearing. no. 11, allowing chair hur, who should have recused himself because of his opinion that was on the record before the hearing began, to vote on the substantive portions involved. thus improperly providing the three required votes. >> hi.
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my name is paula danish and i have a serious issue with the san francisco arts commission. i have a street artist's permit and i have had a lot of problems and they have violated the sunshine ordinance repeatedly over so many years. and it's really affected my life. i have been speaking to your ethics office, about problems posting minutes of the executive committee. they haven't posted in years. and i just hope that you really do a thorough investigation on them, because there is a lot of things wrong with the way they run the meetings. thanks.
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>> the next item on the agenda is changes to our enforcement regulations, mr. st. croix would you like to introduce the matters? >> these are largely housekeeping matters in following up on the changes that the commission has already made. and are pretty straightforward and i think self-explanatory. >> there are three decision points. the first is shall the commission approve the addition of section 3d as set forth on page 3 of the enforcement regulations? the second is to approve the deletion of other references to the sunshine ordinance and the enforcement regulations. and the third is to change the
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definition of "business day" to comply with the sunshine regulations that we propagated previously. these seem to me to be pretty straightforward administrative changes. is there any discussion on these? anything from the city attorney? public comment on this item? >> [tkpwao-frpl/], my name is dr. derrick kur, my comment is not specific to the sunshine ordinance modifications, but does refer to section 6a of your enforcement guidelines. my recollection is that the ken civil grand jury when they did their report, they pointed
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out having two commissioners calling for an issue to be calendared is too high a threshold. so at the discussion of the ethics commission, my recollection is that the commission agreed that one commissioner could question the executive director's dismissal and have the item calendared. but here in your enforcement guidelines it sill says thereafter any two or more members of commission can cause an item to be calendared. so i'm just raising the issue of whether it's two commissioners or whether it can be just one commissioner? thank you. >> commissioners, director of
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san francisco open government. you may wonder sometimes why i come here and seem so angry. well, because i have 14 or orders of determination from the sunshine ordinance task force finding various commissioners, boards, city employees in violation of the ordinance and basically when you got when you get an order of determination is a body who will then look at it and simply say we don't give a damn what the sunshine ordinance task force says, we're not going to do it. we don't care what the law says; we're not going to do it and when it's referred over here, up until this effort op your part to actually enforce it, none more enforced that jul gomez which was basically ignored by the mayor. basically what we're talking about here is denial of due process. the law san francisco gives the
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citizens the right whente it they have been deadline the opportunity to make public comment, the avenue of going to the sunshine ordinance task force and asking for their assistance. but what good does to do you? you go there and get the orders of determination, and yet, other city agencies including this body, just ignore those determinations. know your rights under the sunshine ordinance is printed on every agenda of every commission and board in this city and every meeting. and yet when people who actually do know their rights under the sunshine ordinance and come before the bodies and simply ask to have their constitutional rights respected, for heaven's sake, they get met with open hostility. i went to a meeting, a public meeting earlier this month. and every time i got up to speak one of the commissioners
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simply crossed his arms across his chest and rolled his chair away from the deis and back into the corner. and when i get done speaking he came back to the table. and you say well, yeah, mr. hart, you deserve that. no member of the public deserves that. because what it is is sending a clear message to members of the public, we're going to say the words we want you to be here and we want you to participate, but we don't mean it. earlier this evening the arts commission had a meeting where they tried to blame an expense of the sunshine ordinance task force complaints on certain individuals, when it was them, sending people who couldn't answer the sunshine task force questions and couldn't respond appropriately and simply ignored the law and dragged it out as along as they could. blame the victim.
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>> good evening, david pelpil. i only had a comment on the titles actually, the current regulations are entitled and i think it would help in some ways to add "handling," before "investigations," and more to the point on the new regulations regarding sunshine ordinance matters, i would actually title that "ethics commission regulations for handling alleged violations of the sunshine ordinance." i think it's confusing to suggest that the regulations for violations, when they are not necessarily violations. it's the procedures for handling alleged violations. so those are my only comments about titles.
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the substance is good and fine and i commend it to you for your approval. thanks. >> patrick again. commissioner hur and honorable commissioners, i respectfully request you ignore mr. david pilpel. as you well-know complainants start out filing a complaint. they spend endless hours waiting for their items to be scheduled and calendared and they go through a rigorous process of evaluating alleged complaints, but when the sunshine task force finishes their determination they do not title and forward to you an
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alleged order of determination. they send you an order of determination. don't put the word "alleged" in your title of the new proceedings. because the point the sunshine case ends up in a referral for enforcement, at ethics, it's no longer an allegation. thank you. >> on the -- with respect to the title of the ordinance, or our response to the ordinance and our handling of the ordinances, i think the titles are fine. i don't know if any other commissioners have thoughts. my view is that we do handle some sunshine complaints
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directly. we handle some that the task force would have made a determination on, but ultimately i think the regulations are clear and the title accurately reflects more or less what we're trying to do with them. thoughts? >> i agree. i mean, i suppose we could say ethics commission regulations for complaints made under the sunshine ordinance, but i think violations is fine too. either way. i think it's fine. >> any other thoughts? does the city attorney have any view on that? >> john givener deputy city attorney. your current titles are fine from a legal perspective, the proposed title is fine from the legal perspective. the one thing i would say that you shouldn't amend any portion
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of the sunshine enforcement by enforcement regulations tonight because that is not on your agenda. >> mr. st. croix, can you respond to dr. kur's question about 6a? >> dr. kerr is absolutely correct the bar is now one commissioner member can calendar a complaint. i'm not sure why this copy went out, but it's typographical or an old copy, but it's one that has already been voted on and in effect. >> thank you. any other discussion from the commissioners on this agenda item? is there a motion to approve the changes to the regulations for investigations and enforcement proceedings? >> is moved. >> second.
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>> all in favor? >> aye. >> any opposed? hearing none the motion passes. the next item on the agenda is discussion and possible action on reports submitted by lisa herrick formerly of the san jose city attorney's office. as you will recall and was referenced previously, on october 22, 2012 we held a hearing on this matter relating to ethics complaints brought by mr. shaw. we also reviewed and considered paper submitted by mr. shaw and heard argument from mr. shaw on the matter. during that hearing, we asked
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miss herrick to review a number of determination if they should be disclosed. she subsequently conducted the review and identified set of emails that she believes should be produced in redacted form. so this item agenda is then to discuss whether those emails should be produced as redacted, and if so, whether that has resulted in a willful violation of the sunshine ordinance by the executive director? any comments from the commissioners on this matter? >> do i not get a five-minute rebuttal on this? through the discretion of the
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chair? >> mr. met shah i will give you a little bit of extra time during public comment, but i would like to hear from the commissioners. >> thank you. >> as i recall, this relates tangentially to the subject matter of the two complaints, which i recused myself for reasons stated. the issue being raised in this particular instance does not appear to involve the same or doesn't go to the merits of the two underlying complaints. but i would propose that i not participate in the disposition of this question. >> i have no objection to that, commissioners? objection to that? i assume there is no voter action we
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need to take with respect to commissioner renne's recusal. >> you should vote to. >> so moved. >> second. >> public comment on whether commissioner renne should recuss himself? >> thank you for your integrity, mr. renne. >> all in favor? >> aye. >> opposed? hearing none, the motion passes. commissioner renne shall be recused from discussion of this matter. any other views from the commissioners on whether this document should be disclosed? >> i would find it helpful if someone would recap the standards for redaction? what is disclosable? and by what
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standard one would determine when redacting is appropriate? or unless our -- unless what we're being asked to do is purely provide these documents as redacted, or not at all? >> so my understanding and i will perhaps pass it on to mr. givner to go over the standard. i have printed out for myself the relevant sections. but to recap procedurally what happened, the miss herrick reviewed and determined that the redacted portion was privileged. that was covered by state law and/or local ordinances that protect the disclosure of this
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information, including c3.699-13a. her proposal i believe is to produce the information as redacted. >> not having that section at my fingertips, or in mind, and i don't -- but it's hard for me to make a judgment on this without knowing what that privilege -- knowing more about the nature of that privilege that would require that certain information be redacted. >> i am going back to her memo as well. this is the longer one. >> thanks. >> following up on commissioner studley's question, is the privileged standard that we're looking at
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the one we're talking about all notes, preliminary reports? controller's benchmark studies, audits, investigations and other reports shall be confidential? >> that is -- >> that is the first part of it. >> first part. >> and the second quarter part of the standards is records of any investigation shall be considered confidential information to the extent permitted by state law. >> correct. and then there is the evidence code 1040 section defining "official information." >> okay. and that portion we don't have in our memo, right? tonight? >> here it is if you want to take a look at it. >> okay. :mr. givner, have i missed anything? >> no, no. i was just searching to see if i had evidence code 1040.
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i would note that infection f1.8110b involves whistle-blower complaints and the second section you noted c3699-13 involves ethics investigations. do commissioners have objections to taking public comment now. >> no. >> it sound like what you are offering to mr. shaw is something outside of public comment and as a party to this proceeding you are giving him five minutes and after mr.
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shaw's five minutes open up the floor for public comment. >> okay. we can do that. >> thank you, mr. givner. i'm turning into mr. chatfield my 150-word testimony that i will remail so you don't have to rekey it, introducing typos. i'm sorry, can you hand me that copy back? never mind, i found what i was looking for. so you will recall that when i was here, in october, i testified that 1040 doesn't apply and i also testified quite strongly, both here and at the sunshine task
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force that c3-699-13 doesn't apply either. i have been denied access to these records for two years. regarding access to litigation states, "advice and compliance with, analysis of, and opinion concerning liability under -- or any communication otherwise concerning the california public records act the ralph m. brown act, political reform act and san francisco ethics code or this ordinance," are -- pay atection to this, are
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public records. subject to disclosure. notably, section 6253c of sippra gives agencies ten days to notify requesters, whether the requested records are exempt or disclosable and that if an agency fails to notify the requester in a timely fashion, it waives any applicable exemption. now two years after i filed this records request, you are going to tell me that the two years is not that much longer than ten days. sorry, you don't get to claim an exemption now when you had ten day to do it, when this case was first referred to it and you sat on my case for a whole year. do i have your attention, miss studley?
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moving along, the emails that miss herrick identified are presumptively public records. and so mr. st. croix has to identify any particular exemption that you may now be attempting to rely on. there is nothing in the charter as miss herrick admits that exempts those emails. they are emails. they are not part of the investigative file. second, the non-internal emails, which miss herrick wrongly claims are confidential under section f1.110b are not, in fact, covered by that section. although she underlined the operative description of the confidential documents, the word "communications" or any word that would describe an email is
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missing. under the constitutional requirements for public access, these statutes must be read narrowly. thus, the description of what is confidential can't be expanded to cover communications; which are a completely animal in the investigative file, which was the subject of my complaint. those should also be disclosable, unless otherwise exempt and once an investigation is closed i maintain it becomes a public record and the entire file needs to be released. this commission should ask for an explanation from mr. st. croix about why he forget that these emails were in the file. you should have been made aware
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of that, at least by last october 22nd. and it took miss herrick, in my humble opinion, the wrong jurisdiction to arrive at that conclusion for you. so i am encouraging you to release those emails. it's your ethical duty to do so and it's not your ethical duty to dream up a further exemption to withhold them any further. >> public comment on this matter? ? commissioners, ray hart, director san francisco open government. as i mentioned earlier, every agenda of every board and commission in this city has on its agenda know your rights under the sunshine ordinance. and yet it is really really a
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task to push that rock up the hill and get people to actually follow the law. for example, this body in my 150-word summaries, when i had four orders of derrillation from the sunshine ordinance task force, all of which were ignored until at some point somebody made a decision that my 150-word summaries would go into the minutes as required by law. there is no explanation about that, simply changed. so now i have got one issue being handled by four different commissions in four different ways. trying to get documents is one of the most frustrating things that a citizen in this city has to deal with. you want to get involved in the public issue. you want to get, in particular, financial records.
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and yet, city employees in this case, or in my case, louis herrera, the city librarian used his office to withhold public records from me. he just basically didn't want it made apparent to the public that all the claims that they were making at library commission meetings had no basis. but $10 million that was claimed as a gift to the branch library improvement program was just that, nothing, but claim. and so when i went and i tried to get these documents, he held off for nine months and now we have mr. menat shaw and he comes to you and he wants to get documents about a complaint. following these complaints is kind of like a black box, you drop it in the top and whatever
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comes out, you are expected to live with. same goes with the office of citizen complaints of the police department. i had a city and police inspector lie to be about the existence of a document. he repeated that lie to a deputy city attorney, when i petitioned for the supervisor of records to make a ruling. told her that there was no document. and then three months later, oh, exemption. as mr. menat shaw says you have a certain number of days, a certain time limit to claim the exemption. if you just followed the law, we wouldn't get into these issues, but you don't, and they drag on for years. >> good afternoon again, dr. derrick kerr.